According to
the state bar, the performance test consists
of reading, organizing and writing. Most of
us have been reading since we were about 6,
so you’d think we would have the
reading part of the exam down. But how you
read each piece of the exam – how fast
and with what attitude – makes all the
difference. Let’s go through the parts
of the performance test to show you what I
mean.

The table
of contents

Did you know that the
black bars along the right edge of the table
of contents line up with the beginning page
of that document? These tabs act like thumb-holes
in dictionaries to assist you to locate any
document in the file or library faster. If
you have taken a course to prepare you for
the PT or you have taken PT exams, and this
information is news to you, it should lead
you to wonder what else you may not know about
the PT exam that might help you to pass it.

Why would the examiners go to the trouble
of giving you these tabs? The tabs help you
to navigate through the material. It indicates
that succeeding on the performance test requires
more than simply reading it once, cover-to-cover.
The tabs help you to refer back to facts in
the file and authorities in the library as
you see how the law and facts fit together.

The
Assignment Memo

According to the inventor
of the performance test, Armando Menocal, the
committee that finalizes each performance test
spends ten times as long perfecting the wording
of the performance test as it does the entire
rest of the exam. That should tell you how
important this document is. Reading it once
is not enough, no matter how carefully you
do that. It contains subtle information that
you can only see after you have read the remainder
of the file and library. In most PTs, the Assignment
Memo tells you the names of some or all of
the issues, or tells you where the issues can
be found. This makes the Assignment Memo the
Rosetta Stone of the PT—the most important
couple of pages in the entire exam. Read it
three times: when you first read the file,
then after you have read the file and library,
then again when you want to identify the issues.

The
file

Most
people read the file too slowly. The state
bar’s instructions tell you to spend
90 minutes reading and organizing. But most
people make the mistake of taking almost the
entire time to read. Because the file comes
first, and because people are more comfortable
reading a story, they read it way too slowly.
I think applicants misunderstand the instruction
that puts reading and organizing in a single
time block. Most of us have not had much experience
with open-book exams. You don’t read
an open-book exam as slowly as you would an
essay exam. You are expected to return to the
material when you know how you want to use
it. The first time you read the file you are
noticing facts that may be important and marking
the location of those facts. You can read this
much faster than you normally would.

The time allocated to reading needs to be
divided into phases. The first reading is to
gather information. Then the file and library
must be selectively re-read as part of the
organizing phase. So the order of events is
more like: read; re-read to find the issues;
re-read to find the law that addresses each
issue; then re-read the facts to assign facts
to legal elements. Re-reading the material
in this way certainly makes the black tabs
on the table of contents useful!

Formatting
documents

Many performance tests
contain instructions as to exactly how the
finished product should be organized. The examiners
are doing you a favor! Study the format instructions
and copy them shamelessly. But be aware of
what the format is not: It is not a guide for
organizing your analysis.

Everyone understands generally that the law
in the library is used to resolve the factual
problem. But I don’t think they really
get that the facts and the law match up perfectly,
like fingers in a glove. In real-life legal
research, you have a factual problem and you
look for cases that somewhat fit the argument
you want to make. You may read six cases for
every one that is useful and even then you
probably have to argue by analogy. But the
PT is a closed universe. It may even be more
accurate to say it’s a perfect universe.
Every legal authority applies. It is rare that
you need to analogize or distinguish a case
rule.

Think of a television cooking show, where
all the ingredients are pre-measured and set
out on the table. It all goes into the dish
with nothing left over and nothing missing.
That is how the factual problem and the library
fit together. Unlike a cooking show,
however, the challenge for the applicant is
sorting which law goes to which legal issue
and which facts go under the elements of a
law.

It is this process of sorting that must be
done in order to analyze the performance test
problem and that has to be done before you
write your answer. The formatting document
only comes into play in the last stage, when
you write your answer.

Legal
pleadings and demand letters

The linking of
law and facts is made easier by discovering
the issues. The assignment memo generally names
some or all of the issues, but sometimes it
calls your attention to a legal pleading or
demand letter from opposing counsel. Pay very
close attention to them, because they frequently
name the issues for you. Finding the issues
under which the law and facts sort is the key
to analysis. You don’t have to invent
the issues; they are named in every PT. Knowing
where to look for the issues is a tremendous
time-saver.

Library
table of contents

Same black tabs as
in the file table of contents.

Statutes

If
there are statutes, don’t read them in
detail just yet. There may be a case that discusses
the statute that makes the statute much easier
to understand. Most PTs depend on case law, not
statutes.

Cases

Most people
read cases from beginning to end at the same
speed throughout. They mark everything that
looks important in a case, briefing it as they
did in the first year of law school. They never
get a really clear idea of what a case stands
for because they see ten things to take from
a case instead of one. Until you are clear
on the one rule or test that is the most important
thing to take away from a case, you cannot
see how it lines up with an issue and with
the facts.

Performance test cases, like those in real life,
have wording signals that lead you directly to
the rules. Through experience you can spot these
wording signals – and the rule of the case
-- immediately. Here are some examples. When
a case cites a statute in the PT library, the
rule will be very near the citation. Similarly,
when a case cites another case with approval,
the rule is the quote from the cited case. Then
there are wording cues, some as blaringly obvious
as, “the rule is unyielding…;” and “this
leads to a two-part inquiry….” Another
way of finding the rule is to see where the court
begins to start analyzing the facts. You will
find the rule right above this point. Once you
realize that all you need from any case is one
rule or test and you practice finding the signals
for finding the rule, you can save enormous amounts
of time in the library.

Finding the right rule or test is crucial.
Your legal reasoning will be off-base unless
you find the rules. For this reason, you should
spend twice as long reading the library as you
do reading the file. Remember the first reading
of the file was simply to locate the facts; you
will return to the file to pick the facts that
prove or disprove elements of the legal tests.

Read
the file then the library

Law
is harder to comprehend than facts. You make
your life harder if you try to read the library
before you know the facts in the file. Since
the main problem I see is that people don’t
pick out the right rule of the case, I suggest
you get all the help you can in reading the cases.
Frequently you’ll be able to recognize
the correct test because the facts that the
PT case applies to it are very similar to the
facts in your PT problem.

Performance tests don’t have to feel
like a spin of the Wheel of Fortune. Understanding
the exam better and practicing these reading
skills can turn performance tests into your secret
weapon for passing.

Author's
Bio

Vivian Dempsey passed the California
Bar Exam in 1978. When she was a bar grader,
she took performances tests when the exam was
under development She later was a bar grader
of performance tests. She teaches The Writing
Edge in Berkeley and LA (or as a home-study course),
which covers the essay and performance tests,
and is the author of ‘Performance Test
Power.’